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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 7
By Attorney Arthur Thexton, Of Counsel
Part 7: What Happens During the Administrative Litigation Process with the Wisconsin Department of Safety and Professional Services?
Last time, I talked about how cases are handled once the investigation is complete. This blog will talk about the administrative litigation process.
If there is no agreement (or if none is to be offered), the prosecuting attorney hires whatever experts are needed. The Department’s current policy is to pay no more than $125/hr for experts, including physicians; rates which are more token than substantive. Experts serve because they accept the proposition that part of being a professional is participating in policing the profession. Occasionally an out-of-state or nationally known expert is retained at a higher fee. After their opinions are received a complaint is prepared or (if the opinion is unfavorable) the case is closed or (in rare cases) another expert is consulted. If a complaint is to be issued, the Division's prosecuting attorneys simply issue the complaint by signing it, as an assistant district attorney would do in a criminal case. In cases involving the Medical Examining Board and Podiatry Examining Board only, the complaint is prepared, and then voted on at the next board meeting, under Wis. Stat. § 448.02(3)(b) or 448.675(1)(b), before it is issued.
From this point on, the case is called a "formal Complaint" and is handled as if it were any other civil case under the Wisconsin Rules of Civil Procedure. The Complaint is issued with a Notice of Hearing, Wis. Adm. Code § SPS 2.07, which functions as a summons. Over 95% of all formal actions result in some discipline.
Disciplinary proceedings are not criminal, they are strictly administrative, so there is no right to free counsel nor is there a right to avoid testifying. There is no statute of limitations on the commencement of disciplinary proceedings, and it is common for the Department to receive complaints only after a civil malpractice case has been settled, so that the incident may be six or more years old when first received. In medical cases, it is not uncommon for a physician's conduct to be eight or ten years old, when the case is finally resolved. Recently the legislature imposed time limits on the length of time the Division’s investigation may take in Medical Examining Board cases involving physicians, but these are waivable for cause by the Department Secretary: the limit is one year if patient death is involved, and three years for all other cases. There are no such limits for the other boards’ cases or for non-physicians regulated by the Medical Board.
The formal complaint procedure is set forth in Wis. Adm. Code ch. SPS 2. The Department has adopted all of ch. 804, relating to discovery, Wis. Adm. Code § SPS 2.13. All cases are heard by administrative law judges, who are from the Division of Hearings & Appeals (DHA) in the Department of Administration. After the time for answering, the ALJ will hold a pretrial conference, Wis. Adm. Code § SPS 2.11, always by telephone, and will schedule the case and discovery and motion practice in a manner similar to any circuit court judge. These ALJs also apply Wis. Admin. Code ch. HA 1. Depositions; interrogatories; productions of documents; notices to admit; and physical examinations of premises, evidence, and respondents; are all common.
The respondent must answer the complaint within 20 days. Service of the complaint is usually by certified mail, although ordinary mail is authorized, Wis. Adm. Code § SPS 2.08, and personal service is sometimes used, particularly if some interlocutory relief such as summary suspension is sought. Subsequent pleadings (including the Answer) and other documents are, of course, usually handled by ordinary mail. DHA has facsimile machines, and filing by fax and e-mail is permitted, Wis. Adm. Code § SPS 2.08(2).
Even after the formal complaint is filed, most cases are settled, as they are in circuit court practice. However, it is important to remember that the prosecuting attorney does not have the discretion that an assistant district attorney has. All Medical Examining Board settlements must be approved by the legal manager. All settlements for all boards are also required to be cleared with the case advisor. (Note: both of these approval processes are also used if a stipulation is reached without a formal complaint being filed.) The case advisor may not deliberate on a settlement with the rest of the board unless the stipulation so provides (and it always does), and boards have been known to reject settlements which have been agreed to by both sides and approved by the case advisor, and which have been vigorously and sincerely advocated by the prosecuting attorney. If a stipulation is reached, it is handled as if it had been reached before the complaint was issued, see above.
The purposes of discipline are the same as the purpose of sentencing in a criminal case, except for the element of punishment. The factors of rehabilitation, protection of the public, and deterrence of the respondent and others, are to be considered by the boards and Department. In general, the available disciplinary measures are: a reprimand, suspension, revocation, a civil forfeiture, and a limitation on the license. Not all boards have forfeiture authority, although the trend is towards giving boards this alternative. A limited license is a very flexible tool, is analogous to probation, and may be for a set period or permanent, Wis. Stat. § 440.01(1)(d).
Next time, I will talk about the actual formal hearing, in front of the administrative law judge, and the post-hearing process.
If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown, LLP.
